One Court of Justice

Carlton and his wife Viola had a son and a daughter.  The daughter is the deceased mother of Carlton and Viola’s two granddaughters, Melady and Melinda.  Carlton and Viola executed identical wills, a revocable trust agreement, and an agreement to execute mutual wills, all of which reflected an estate plan to establish a trust for the benefit of Melady for life, with the remainder to the issue of Carlton and Viola.  Viola died first.  Subsequently, Carlton transferred title from assets that had been jointly owned by Carlton and Viola to be titled jointly in his and Melady’s name or to name Melady as beneficiary.  Carlton and Viola’s son and other granddaughter brought this action requesting that the probate court impose a constructive trust on certain assets in Melady and her husband’s control, alleging that Carlton transferred the assets in violation of the agreement to execute mutual wills.  After a hearing, the probate court found that the agreement to execute mutual wills was valid and binding, that nothing in the agreement restricted what the surviving party could do with the the joint assets, and that Carlton’s transfer of assets did not constitute a breach of the agreement.  The probate court granted summary disposition in favor of Melady and her husband, and in a per curiam opinion, In re Estate of Carlton J Leix, No. 291406, the Court of Appeals affirmed.  The Court of Appeals held that there was no implied limitation in an agreement to execute mutual wills that limits the surviving spouse’s ability to transfer assets as he or she pleases.

In an opinion released after the Michigan Supreme Court’s July 31 end of term, the Court reinvigorated the latent-ambiguity doctrine by holding that the word “all” in a liability release did not actually mean “all” where extrinsic evidence demonstrated that the parties to the release meant less than “all.”

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On August 26, 2010, the Michigan Supreme Court published its opinion in People v. Szalma, No. 140021.  The Court held that where the trial judge determined that a prosecutor failed to present sufficient evidence to convict the defendant, the double-jeopardy clauses of the United States Constitution and the Michigan Constitution prohibit retrial.

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A search of the defendant’s car after he was arrested and in police custody was unconstitutional under Arizona v. Gant, 129 S. Ct. 1710 (2009), decided on the day of the defendant’s suppression hearing.  In Gant, the Supreme Court ruled that police may search a vehicle incident to an arrest only “when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search,” or when it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.”  129 S. Ct. at 1719.  In People v. Short, No. 292288 (published Aug. 26, 2010), the Michigan Court of Appeals explained that Gant applied retroactively, and the police search of the defendant’s car was unconstitutional.  But exclusion of evidence is not an automatic remedy for an unlawful search.  The exclusionary rule is designed to deter police misconduct, and therefore, courts have recognized a good-faith exception to the rule.  Addressing this issue of first impression, the Court of Appeals concluded that an officer’s reliance on valid case law which was later overturned may form the basis of an officer’s good faith and avoid exclusion of the disputed evidence at trial.  Because the search was lawful under well-established case law at the time of the arrest, the Court of Appeals upheld the trial court’s application of the good faith exception to the exclusionary rule.

On August 26, 2010, the Court of Appeals published its decision in McLean v. Phenix, affirming the trial court’s holding that Michigan’s “medical care or treatment” exception to governmental immunity, found in MCL 691.1407(4), extends to treatment for mental, as well as physical, diseases and illnesses.  The Court found MCL 691.1407(4) clear and unambiguous; accordingly, the Court confined its analysis to the statutory language.  The statute provides immunity does not extend “to a governmental agency or an employee or agent of a governmental agency with respect to providing medical care or treatment to a patient…”  The section includes no qualifier or other language limiting the exception to care directed at physical maladies.  Therefore, the Court affirmed the trial court’s holding that the “medical care or treatment” exception did not apply in a suit arising out of a community mental health service agency’s care for the plaintiff’s decedent.  However, because the plaintiffs did not allege the CEO of the defendant had provided care to the decedent, the Court reversed the holding of the trial court with respect to him.

Defendant Tion Terrell was convicted of assault with intent to murder and related crimes after a non-lethal shooting incident.  After his conviction, the defendant moved for a new trial and offered the testimony of his codefendant.  The codefendant, who had invoked his Fifth Amendment privilege against self-incrimination and was acquitted at trial, testified post-trial that the victim had been armed and that someone other than the defendant shot the victim.  The trial court granted a new trial based on newly discovered evidence.  In People v. Terrell, No. 286834 (published Aug. 26, 2010), the Court of Appeals reversed the order for new trial, holding that the testimony of the codefendant was not newly discovered evidence, and therefore a new trial was not warranted.  In this issue of first impression, Judge Borrello, joined by Judge Meter, adopted the approach of the majority of federal circuit courts:  a codefendant’s post-trial exculpatory testimony constitutes newly available evidence, but it is not newly discovered if the defendant knew or should have known of the evidence before or during trial.  The Court of Appeals stressed that the codefendant’s testimony was not new to the defendant, and the defendant did not seek available remedies to overcome the potential prejudice caused by his codefendant’s refusal to testify, such as severance of trial and limited immunity.  Judge Borrello’s opinion can be found here.  Judge Shapiro concurred in the result, but believed that the Court of Appeals should have applied the test articulated by the Court of Appeals for the First Circuit, which assesses such testimony on a case-by-case basis, rather than applying a bright-line rule.  You can find Judge Shapiro’s concurring opinion here.

On August 24, 2010, the Court of Appeals published Judge’s Saad’s opinion in People v. Dendel, No. 247391.  The defendant in this case had been convicted of second-degree murder for causing the death of her domestic partner by injecting him with a fatal dose of insulin.  This case had been remanded by the Michigan Supreme Court for examination of Confrontation Clause issues in light of the recent United States Supreme Court decision in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009).  Here, these Confrontation Clause issues related to the testimony of a toxicologist who had testified about the level of glucose found in the alleged victim’s system based upon the findings of forensic toxicology tests he did not perform compiled in a report he did not prepare.  The Court of Appeals concluded that, under the current standards, the report of a zero-glucose level in the body was a testimonial statement, and that the defendant’s constitutional right to confront his accusers was violated where the trial court allowed an expert witness to give hearsay testimony about those glucose levels.  The Court of Appeals, however, found that this was error was harmless beyond a reasonable doubt because of the wealth of other evidence, establishing the cause of death and supporting defendant’s conviction.

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In People v. Campbell, No. 29135 (published Aug. 26, 2010), the Court of Appeals held that the Medical Marihuana Act, MCL § 333.26421 et seq., does not apply retroactively.  The case began when Keith Campbell was arrested in December 2007 for various marijuana charges and for possessing a firearm during the commission of a felony.  A year later, while his charges where still pending, the Act passed and became effective.  The Court of Appeals explained that legislatives acts are presumed to apply only prospectively unless the legislature indicates an intent for a new law to apply retroactively, and the Medical Marihuana Act did not contain any such indication.  Nor was the legislation a remedial, because it created a new right—an affirmative defense that did not exist prior to the enactment of the Act.  Accordingly, the Court reversed the trial court’s dismissal of the criminal charges and remanded for further proceedings.

Ronald Rose was convicted of four counts of criminal sexual conduct against an eight-year-old girl and of two counts of disseminating sexually explicit matter to minor (the girl and her ten-year-old brother).  In People v. Rose, No. 290936 (published Aug. 26, 2010), the Court of Appeals rejected his argument that allowing the girl to testify at trial from behind a screen violated the Confrontation Clause of the Sixth Amendment to the U.S. Constitution and a Michigan statute.  This procedure did not violate the Confrontation Clause because the U.S. Supreme Court has held that there is a compelling state interest in protecting child witnesses, and the trial court here made specific findings that the screen was necessary to protect the girl because of her fear of Rose, of her age, and of a therapist’s testimony that there was a high likelihood that the girl would suffer psychological damage if required to testify face to face.  It also did not violate the Michigan statute, MCL § 600.2123a, because that statute does not address witness screens, and courts have inherent authority to control procedures that includes the authority to use witness screens.  The Court of Appeals also concluded (1) that the use of witness screens is not inherently prejudicial (like requiring a defendant to testify in prison garb is), (2) that it was not an abuse of discretion to deny Rose’s motion, filed one day before trial, to exclude the prosecution’s expert witness on child sexual abuse dynamics, and (3) that Rose’s counsel was not ineffective.  Accordingly, the Court of Appeals affirmed Rose’s conviction and sentence of 25 to 50 years in prison.

Concluding a whirlwind of events that began early this morning, Governor Granholm has announced her appointment of Michigan Court of Appeals Judge Alton Davis to the Michigan Supreme Court.  Justice Davis fills the vacancy left by Justice Weaver, who announced her retirement and resignation earlier this morning.  The Detroit Free Press article covering the announcement can be found here.